Last year’s Lee v Ashers Baking Co Limited [2018] 3 WLR 1294, concluded the UK’s incarnation of the right-v-right battle involving bakeries’ refusals, on religious grounds, to make cakes which promote or support same-sex marriage.[1]At the time the judgment was handed down, commentators questioned the application of Leein other contexts[2]. The recent EAT decision of Gan Menachem Hendon Limited v De Groen (EAT, 12th February 2019), demonstrates at least one way that Leeaffects direct discrimination claims brought in the employment setting.

Background to De Groen

Gan Menachem Hendon Limited (“GMH”) ran a Jewish nursery affiliated with the Chabad Lubavitch Hasidic movement. From July 2012, Ms Zelda De Groen was employed as a teacher and team leader at the nursery. The Employment Tribunal found that on one occasion she had attended a nursery barbecue with her live-in boyfriend. At the barbecue, Ms De Groen’s boyfriend revealed that he was cohabiting with Ms De Groen in the presence of at least one member of staff and, possibly, nursery attendees’ parents.

Subsequently, Ms De Groen was invited to a meeting held by the nursery’s head teacher and GMH’s managing director. The Employment Tribunal found that, at the meeting, the head teacher and managing director made statements of belief to the effect that cohabiting and raising children outside of marriage were wrong. It further found, that the head teacher and managing director were not concerned about what Ms De Groen did in her private life and had asked if Mr De Groen would at least say that she was no longer cohabiting so that they could assuage any parental concerns. Ms De Groen would not agree to make the statement.

On 27th July 2016, GMH dismissed Ms De Groen for some other substantial reason. The specific grounds were that she,

“1). Presented [herself] in such a way as to prove [she had] acted or [was]acting in contravention of the Nursery’s culture, ethos and religious beliefs;

3). Through such damage (point 2 above) [her] disclosure has potentially led to the financial detriment of the Nursery and loss of income on the basis parents have threatened to remove their children from the business to prevent them being in [her]care.”

Following dismissal, Ms De Groen presented claims of direct discrimination on grounds of sex, religion and/or belief, harassment on the ground of sex, and indirect discrimination on the ground of religious belief, which were all upheld by the Employment Tribunal.

EAT decision

GMH appealed the decision and the EAT, with Swift J sitting, upheld the appeal against the Employment Tribunal’s in part; he overturned the decision that GMH had directly and indirectly discriminated against Ms De Groen because of her belief.

One issue before Swift J was whether Ms De Groen’s direct discrimination claim could be upheld given that GMH was acting in accordance with its own religious belief. Swift J stated that the claim could not be upheld (at [20]):

“[T]he conclusion that section 10(1) of the 2010 Act prohibits less favourable treatment by an employer on the basis of its own religion or belief is wrong.”

Swift J took Lee as the inescapable authority for the principle that the purpose of discrimination law is to protect particular people witha protected characteristic and not to protect people generally from a protected characteristic. The reasons for this are twofold (at [21]):

1. The discriminator’s motive for less favourable treatment must be immaterial to the question of whether a discriminatory act has occurred; and

2. There can be no less favourable treatment where an employer acts on its belief since the employer, by acting on its belief, treats people of all beliefs in the same way.

According to Swift J, Ms De Groen’s dismissal was grounded in GMH’s belief that cohabitation outside of marriage was wrong, which is not a protected characteristic, and not because of Ms De Groen’s lack of belief in cohabitation within marriage, which is a protected characteristic. Thus, the dismissal could not amount to an act of direct discrimination grounded on a protected belief.

Points to Consider

On the face of it, the Lee principle – that actions based on an alleged discriminator’s beliefs cannot be acts of direct discrimination – is cogent. However, difficulty lies not with the principle itself but in its application. In De Groenthere is no explanation as to how one distinguishes between instances where an employer acts because of an employer-held belief and situations where the employer’s acts are in fact grounded on an employee’s belief (or lack thereof). This was perhaps because the distinction in De Groenwas clear: Ms De Groen was not dismissed because of her belief; she was dismissed because of her act of non-marital cohabitation. Yet, Lee may not have been so easily applied if, for instance, Ms De Groen had been dismissed in circumstances where she had positively espoused a belief that non-marital cohabitation was morally acceptable and lived in accordance with that belief.

De Groen also contains a useful warning against “kitchen sink” pleadings, where litigants bring a variety of legal claims (or defences) that are incongruous with the pleaded facts. The EAT overturned the Employment Tribunal’s decision on Ms De Groen’s indirect discrimination claim because the Employment Tribunal had not properly identified a practice, criterion or provision (“PCP”) that could give rise to any particular comparative disadvantage. This is not surprising. Since GMH’s actions are deemed to be indiscriminate (as per above), there may be some narrow factual basis for asserting that a PCP is technically in play. However, looking at the matter in the round, GMH’s decision to dismiss Ms De Groen was a positive, one-off action directed at an individual; hardly the application of a neutral PCP to the particular disadvantage of a group of persons sharing the characteristic. Hence, Swift J opined (at [66]),

“The temptation to place a single series of events simultaneously in various legal categories is, for lawyers at least, ever present. But there will be occasions where this is artificial… [T]here is no virtue in applying rules that prevent unlawful discrimination to situations where their application is detached from reality. Claims will not necessarily be improved by the number of different ways they are pleaded.”